Pro Se Litigants, Mediation, and the Unauthorized Practice of Law

Pro Se Litigants, Mediation, and the Unauthorized
Practice of Law

Purpose and Scope

This outline considers the meaning of the term "practice
of law," and its implications for mediation by non-lawyers,
particularly when litigants or potential litigants appear pro
se. It then offers some practical suggestions regarding measures
which might be taken by a non-lawyer mediator to minimize the
risk of allegations of the unauthorized practice of law.

What is the "Practice of Law"
and who is authorized to engage in it?

Definition under V.T.C.A., Government Code Sec. 81.101

(a) In this chapter the "practice of law" means
the preparation of a pleading or other document incident to an
action or special proceeding or the management of the action
or proceeding on behalf of a client before a judge in court as
well as a service rendered out of court, including the giving
of advice or the rendering of any service requiring the use of
legal skill or knowledge, such as preparing a will, contract,
or other instrument, the legal effect of which under the facts
and conclusions involved must be carefully determined.

(b) The definition in this section is not exclusive and does
not deprive the judicial branch of the power and authority under
both this chapter and the adjudicated cases to determine whether
other services and acts not enumerated may constitute the practice
of law.

Authority to practice law under V.T.C.A., Government Code Sec.
81.101

(a) Except as provided by Subsection (b), a person may not
practice law in this state unless the person is a member of the
state bar.

(b) The supreme court may promulgate rules prescribing the
procedure for limited practice of law by:

(1) attorneys licensed in another jurisdiction;

(2) bona fide law students; and

(3) unlicensed graduate students who are attending or have
attended a law school approved by the supreme court.

"Strong public policy considerations support our disallowance
of Elissa Magaha's representation of the relator: The controlling
purpose of all laws, rules, and decisions forbidding unlicensed
persons to practice law is to protect the public against persons
inexperienced and unlearned in legal matters from attempting to
perform legal services. The objective is to protect the public
against injury from acts or services, professional in nature,
deemed by both the legislature and the courts to be the practice
of law, done or performed by those not deemed by law to be qualified
to perform them. Brown v. Unauthorized Practice of Law Comm.,
742 S.W.2d 34, 41-42 [**3] (Tex. App.-Dallas 1987, writ denied)
(citations omitted) (considering Tex. Rev. Civ. Stat. Ann. art.
320a-1, 19(a) (Vernon Supp. 1987), since repealed, whose subject
matter is now addressed in section 81.101). The legislature's
mandate against laymen practicing law is in the interest of the
public welfare; it is for the public's benefit and protection."

"The record reflects the following undisputed facts.
Ron Brown conducted a business in which he entered contracts
with individuals to represent them in resolving their personal
injury and/or property damage claims on a contingent fee basis.
Prior to April 1986, Brown used a form contract that provided
that Brown, as agent, was authorized to effect a settlement or
compromise of the client's claim, subject to client approval,
or to assist the client in retaining legal counsel. The contract
further provided that if legal counsel was not obtained, Brown
would get one-third of the amount paid to settle his client's
claim, but he would receive forty percent of any amount received
after obtaining counsel to file suit and he would pay the attorney's
fee from his portion. Brown also reserved the right to select
legal counsel."

Vijay Fadia owns and operates County Homestead Service Agency
in Torrance, California. He publishes a will manual entitled
"You and Your Will: A Do-It- Yourself Manual" that
he distributes in several states, including Texas. Fadia is not
a licensed attorney in any state and has not attended law school.
Fadia admits that no Texas attorney has reviewed or updated the
book. He sold approximately 200 manuals in Texas for $24.95 each.

Fadia's will manual contains information on how to prepare
a will. The manual covers topics such as executors, legal guardians,
holographic wills, joint wills, simultaneous death provisions,
incontestability clauses, specific bequests, community property,
and pourover wills. The will manual also includes "fill-in-the-blank
forms" for specific situations and several documents he
calls "statutory" will forms from other states. ***

"The selling of legal advice is the practice of law.
Fadia sold his advice for $24.95. Cf. Cortez, 692 S.W.2d at 50.
The State Bar has not only the right but also the obligation
to prevent legal advice clothed in the robes of simplicity from
adversely affecting the estates of the unsuspecting public. Because
a nonlawyer cannot and should not give advice to any other person
on the drafting and executing of wills, we conclude that Fadia's
publication and distribution of his will manual constitutes the
practice of law."

Rattikin Title Company v. Grievance Committee Of The State
Bar Of Texas, 272 S.W.2d 948, (Civ. App., Fort Worth, 1954)

"...where title company prepared legal instruments for
persons and corporations other than itself and its principal
in transactions whereby it neither had nor acquired any interest
in the subject matter of the transaction, and also gave advice
or made statements to persons other than its principal and its
employees as to purpose and effect of legal instruments in transactions
to which neither title company for its principal was a party,
title company was engaged in the illegal practice of law and
such activity would be restrained by temporary injunction.

"In the present instance, such interrelated activity
by intermingled personnel resulted, as disclosed by the record,
in the Rattikin Title Company (though its employees) performing
acts which constituted the practice of law, to-wit: preparing
legal instruments for persons and corporations other than itself
and its principal in transactions whereby it neither had nor
acquired any interest in the subject matter of the transaction,-and
also resulted in it (through its employees) giving advice or
making statements to persons other than its principal and its
employees as to the purpose and effect of legal instruments in
transactions to which neither the Title Company nor its principal
was a party. These very acts on the part of the Title Company's
employees constituted the unauthorized and illegal practice of
law by the Title Company, and the trial court properly enjoined
their continuance. "

Technical Effect of Representation
of Parties

Representation of other parties to transaction does not cure
the unauthorized practice of law (the ÒadjusterÓ
in the Brown case was at times dealing with lawyers in settling
the claims of his clients.

Use of publications does not cure, if in fact advice.

Lawyers performing the work for non-lawyer entities providing
the services does not cure.

Practical (or perhaps Impractical)
Suggestions, or "What can I do?"

Although technically I suggest that the involvement of lawyers
in mediation does nothing to improve the situation, where the
parties are represented there is practical protection in that
the policy underlying the prohibition is being well served. Thus
mediation by non-lawyers where all parties are represented by
counsel is probably a safe harbor.

Where any party appears pro se, it is very difficult to avoid
reliance by the party on the mediator's understanding of the important
issues in the dispute at hand. Thus the policy considerations
for the prohibition on unauthorized practice apply fully. Some
protection may be afforded by a written agreement stating that
the mediator will not provide legal advice, but labels are not
controlling. All documentary evidence of the process should be
prepared only by the parties, and the parties should the define
the issues to be resolved. Parties should be advised in writing
to obtain legal counsel.

Finally, again in service of the policy, if not the letter
of the prohibition, association of an attorney co-mediator will
afford some protection.